ET1s are precisely what you don’t want as fall-out from your work’s Christmas party. However, with a bit of pre-planning, you can limit the risks and ensure that your festive celebrations are memorable - for all the right reasons.
So here are EEF’s top ten HR and employment law tips to minimising the post-Christmas party HR hangover.
1. Remember - you remain vicariously liable
“Yes, they are adults and yes, they should know better!” However, even in relation to a Christmas party held off-site, out of normal working hours and, at which attendance is optional, you can still be held legally responsible for your employees’ actions.
You are also potentially liable to your employees for the actions of third parties. Notwithstanding that this year the Government repealed the specific third party harassment provisions in the Equality Act 2010, employees can still claim under general harassment provisions of the Act (see below), or potentially the Protection from Harassment Act 1997, if an employer is aware of any harassment, or potential harassment of their employees by third parties and does nothing about it.
2. Watch out for ‘the mistletoe effect’
Sexual harassment claims have historically been the most common employment law fall-out from the office Christmas party. Although one person might see certain behaviour as “friendly banter” or “a bit of harmless flirting”, another could view it as harassment. The law states that “unwanted conduct with the purpose or effect of violating a person’s dignity, creating an intimidating, hostile, degrading, humiliating or offensive environment” will amount to unlawful harassment. If it is on the grounds of sex or is of a sexual nature it will amount to sexual harassment.
What is ‘unwanted’ is very difficult for a third party to judge. So, watch out for the office joker who, after a few a few drinks, considers themselves to be irresistible – the feeling may well not be mutual.
3. “Did you hear the one about …”
Similarly, jokes which might seem hysterical to one person might be offensive to others.
Jokes which single out specific characteristics, such as peoples’ race, religious belief, sex or sexuality (or any of the eight protected characteristics covered by the Equality Act 2010 - age; disability; gender reassignment; marriage and civil partnership; pregnancy and maternity; race; religion or belief; sex; sexual orientation) can prove to be anything but ‘a cheap’ laugh.
Booking the Bernard Manning tribute act is a bad idea – for so many reasons!
4. Excess alcohol and good HR don’t mix
Nobody wants to be a Scrooge, but unfortunately excessive consumption of alcohol and inappropriate behaviour/ fighting/violence do seem to go hand-in-hand. So, although you might reasonably be expected to provide a bit of liquid Christmas cheer, operating a completely unregulated open bar - although an inevitable initial employee relations hit - can result in a subsequent HR nightmare.
Providing employees with unlimited amounts of free alcohol and doing nothing to discourage those who obviously over-indulge is unlikely to be viewed as the actions of ‘a responsible employer’ by an independent third party – such as an employment tribunal judge! Make sure there are plenty of non-alcoholic options available.
5. Make sure the rules are clear in advance….
Sending an invitation accompanied by a full set of ‘Party Rules’ for the employee to sign and return before attending the event might seem a tad heavy-handed. However, it would be sensible to remind employees in advance that notwithstanding that it is a social event they will still be expected to abide by the company’s normal policies and procedures, including anti-harassment and equal opportunity policies and that breaches – even if influenced by alcohol – will not be tolerated and may result in disciplinary action.
Encourage managers to lead by example. Consider asking certain managers to act as ‘unofficial hosts’ and take responsibility for ensuring any potential problems are nipped in the bud before they escalate. If an ‘incident’ does occur, do not try to deal with any more than the basics at the event itself. A swift and hopefully dignified exit for the individual(s) concerned – “taxi!” Leave any official action until the cold light of day, when everybody is back in the office. If you are going to address the issue formally under your disciplinary procedure be sure that you address the issue promptly.
Remind managers that the Christmas party is not the appropriate venue at which to discuss issues such as salaries, promotions or team working relationships. After a glass or two of mulled wine a manager may not remember ‘agreeing’ to Charlie’s flexible working request - but, you can bet Charlie will! Such discussions can potentially be contractually binding.
6. Location, location, location
There can be significant advantages in holding your party off site – not least because somebody else gets to do the clearing up! However, whatever venue you do decide upon, make sure that it is appropriate. Undertake a risk assessment pre party. Is the proposed venue accessible to employees who have a physical impairment, or, will you need to make ‘reasonable adjustments’ to ensure that it is? If you do decide to hold your party on your own premises, you might want to consider making certain areas out of bounds. Remember, you also have a duty of care to your employees in relation to physical injury. Although office desks might be fine for supporting an overflowing in-tray, PC and coffee mug, they probably wouldn’t make the most stable of dance floors. Not to mention the potential risks to certain body parts from a glass panelled photocopier!
Check that your employer liability insurance covers you for any claims which might arise as a result of a social event.
7. Do consider how employees will get home.
Again, available transport should influence your choice of venue. If you are holding an evening event, will public transport still be running? Provide the contact details for local taxi firms and encourage employees to make their arrangements for getting home in advance.
Laying on transport home, or even providing/facilitating overnight accommodation, (if appropriate), will always be appreciated by employees who wish to enjoy a drink or two.
8. Be inclusive
Although not everybody celebrates Christmas as a religious festival, using Christmas as an opportunity to celebrate with colleagues will not constitute religious discrimination in itself, (contrary to what some “political correctness gone mad” proponents would have you believe).
Obviously, nobody should be ‘forced’ to celebrate or attend a Christmas party, but neither should they be deliberately excluded or overlooked on the assumption that they would not want to attend. Taking all employees into consideration, both in terms of the time, location and format of celebration is important. Would an alternative lunch or early evening event be better for staff with child care responsibilities? Other issues which might be relevant to an individual’s religion or beliefs include appropriate dress codes and special dietary requirements. If partners are being invited, make sure that both opposite and same sex partners are included.
Opinion is divided as to whether the Agency Worker Regulations 2010, oblige you to invite your agency workers to your works Christmas party. The Regulations state that agency workers are entitled to, ‘benefit from your collective facilities and amenities from day one’. Does the Christmas party fall into this definition? To be safe rather than sorry – and more importantly for the sake of staff morale and inclusivity – there is a lot to say for extending your party invite to all staff.
9. The morning after the night before ….
If you hold an event that is likely to carry on into the ‘wee hours’, decide in advance to what extent, if at all, you are willing to be lenient with staff the following day. If it is a working day, would you willing to allow staff to start an hour later than normal? Whatever you decide, ensure that you apply any dispensation consistently. Emphasise in advance that unauthorised absences will be treated in accordance with your normal procedures.
You might want to encourage those employees who feel they might be ‘overly tired’ the following day to book a day’s leave.
And finally …..
10. Have fun!
After all, it is Christmas!
And, if despite your best efforts, you do experience some Christmas party fall out, your EEF adviser is just a phone-call away.